In this case we have a drunk driving suspect, Inocencio Muniz, who was legitimately in custody, and that is not at issue.

What is at issue is what the police did with Mr. Muniz once they lawfully had him in custody.

What they did is what they do with the large majority of drunk driving cases, which now number of 1,000 a year in Cumberland County, Pennsylvania.

They took him to one of the central booking stations that have been set up and there turned him over to several processing agents, employees of the county whose job it is to do nothing but process drunk driving suspects.

What they did was a multi-step function, all of it on videotape.

They bring the individual into the room, ask him some routine booking questions, his name, his address, his Social Security number and such.

They then follow that with several sobriety tests.

They first at this point ask him to try to calculate the date of his sixth birthday.

They ask him to walk a line, nine steps.

They ask him to balance himself on one leg while counting to 30, and they conduct the horizontal gaze nystagmus test which measures the effect of alcohol on the function of the eye.

Unknown Speaker: Mr. Eakin, may I ask you, are these regular... is this the routine that's followed with everyone?

Mr. Eakin: Yes, sir.

Unknown Speaker: Is it pursuant to regulation, or is it just this particular police department that does this?

Mr. Eakin: Well, this is the county, which encompasses probably State Police, several military installations and 20-odd local departments.

The county agents do it, and they always do it the same.

The latter three of the field tests are what are called the standard field sobriety tests.

They're the ones that are recommended by the National Highway Traffic Safety--

Unknown Speaker: You said they always do it the same just by custom, not by... no written regulation requires this procedure?

Mr. Eakin: --No, sir, not by law or regulation.

Unknown Speaker: What would happen if a... if an individual said I won't do it?

Mr. Eakin: Well, the law, we feel, would allow the police to compel them to do it, but practically speaking there is no way you can compel a person to walk a line and get any useful information.

Unknown Speaker: Does he... does he... does he violate any law if he says I will not recite the alphabet or I will not tell you my sixth birthday?

Mr. Eakin: No, sir.

What happens is that the videotape which is available would indicate the circumstances of the refusal, and so the refusal may come into evidence.

Unknown Speaker: Right.

Mr. Eakin: But there's no penalty, excepting the breath test, which is the... the stage of the process that follows these sobriety tests is the breath test.

The individual is advised that under Pennsylvania law there is an implied consent.

You have the breath test here.

If you refuse to take it, you will lose your license for an additional year's time, regardless of the conviction or lack of conviction on the underlying drunk driving case.

In this case, Mr. Muniz made several statements while that was being explained to him, as is required by Pennsylvania law.

He refused the test eventually.

At that point he was taken again to another table.

He was given his warnings under the Miranda decision, and then for the first time was asked specific questions aimed at his drinking, where he was drinking, what he had to drink, where he was coming from.

The test in this case or the issue that is to be resolved, we submit, is the distinction between those latter questions, which are clearly aimed at gaining testimonial evidence from the accused, and everything that went before, which was gained or aimed at gaining physical evidence, demonstrable evidence.

Unknown Speaker: Well, now one of... one of the questions asked at the processing stage was, I believe, what was the date of your sixth birthday.

Mr. Eakin: Yes, that's correct.

Unknown Speaker: Now, is that some kind of a routine question that's asked whenever the police think someone might have been drinking?

Mr. Eakin: It was asked routinely in Cumberland County at the time.

Since the decision by the Superior Court it has not been asked, but it was at that time.

It is asked at the conclusion of the routine booking questions and immediately before the horizontal gaze nystagmus test.

Unknown Speaker: Well, wouldn't the... the information given in the response be relevant on the question of whether the person had been drinking or not?

It is not aimed at determining the truth of the answer, the date of his sixth birthday.

What it's aimed at--

Unknown Speaker: But whether he responds accurately or not is relevant?

Mr. Eakin: --That's correct.

Unknown Speaker: And you would propose to offer it and use that against him?

Mr. Eakin: Yes, Your Honor, that's correct.

We would use it to show the physiological effect that alcohol has had on that man's brain, not to elicit the contents of his mind.

The brain controls the tongue--

Unknown Speaker: Why isn't that a form of interrogation?

Mr. Eakin: --Because the goal is not to achieve testimonial evidence.

It is not to achieve--

Unknown Speaker: Well, it certainly is to get evidence to use against the person to establish whether they've been drinking or not.

Mr. Eakin: --That's correct, just as walking the line--

Unknown Speaker: It's quite unlike asking the person for an address and a driver's license.

Mr. Eakin: --That's correct, but it is also unlike asking him how much did you have to drink.

What it is designed to show is that alcohol has affected this man's brain to the point that he cannot do basic calculations.

Unknown Speaker: Well, would he have a right to refuse to answer that question?

He says I refuse to answer that question.

Mr. Eakin: I suggest he probably would, just as he can refuse to answer any question.

Unknown Speaker: Well, could you then put in evidence the fact that he refused to do the birthday calculation?

Mr. Eakin: We would submit you can, because it is not aimed at testimonial--

Unknown Speaker: Well, so then he doesn't have the right to... to... to refuse to decline on Fifth Amendment grounds, at least.

Mr. Eakin: --What he has... he has no right to be warned of the consequences of refusal.

Unknown Speaker: No, he has... under your view he has no self-incrimination right not to answer that question, because if you say that he does then you can't introduce his refusal into evidence.

Mr. Eakin: As a practical... perhaps I'm speaking more as a practical matter than anything else, because to... to compel someone in that circumstance is... is practically impossible without intervention--

Unknown Speaker: No.

The question is a simple one, whether or not he has a Fifth Amendment right to decline to answer the question.

Mr. Eakin: --We would suggest he does not have a Fifth Amendment right not to answer the question.

Unknown Speaker: Just as he doesn't, I suppose, in your view, to refuse to walk a line?

Mr. Eakin: Yes, sir.

Unknown Speaker: Although neither one can actually be compelled in a police station.

Mr. Eakin: Right.

We have the right to compel but, practically speaking, no ability to compel.

Unknown Speaker: Is there any challenge in this case to... I... I guess there is... to the introducing the videotape of the physical tests?

In subsequent cases of theirs, they have said that it would be unfair to force the defendant to choose between a video without audio and, therefore, have suppressed the entire--

Unknown Speaker: Well, how about in this case, in this case?

Mr. Eakin: --In this case it was merely the audio that was suppressed.

Unknown Speaker: Well, in... in... so the... the... the demonstration that he couldn't walk a straight line, that shows what the effect of alcohol is on his physical coordination, I suppose?

Mr. Eakin: Well, to a degree it does.

In this specific case, his explanations as to why he could not walk the line were certainly relevant.

If we have the right to ask him to walk the line, I suggest his responses to that request or that demand are just as relevant as the actual walking of the line itself, and there shouldn't be a distinction between his oral refusal to do this test--

Unknown Speaker: What about this eye test?

Who... you can't see that on video, can you?

Mr. Eakin: --You can, yes.

We've had experts who testify.

The camera zooms in such that the face of the accused--

Unknown Speaker: And is that what happened in this case?

Mr. Eakin: --Yes.

Yes, Your Honor, and it shows the eye--

Unknown Speaker: And what does that show?

Mr. Eakin: --It shows the eye tracking a stimulus, which in this case was a pencil, from side to side slowly--

Unknown Speaker: And is that supposed to show that he was drinking?

Mr. Eakin: --Yes, sir.

Unknown Speaker: Had been drinking?

Mr. Eakin: Yes, sir.

Unknown Speaker: So it shows... shows the alcohol, the effect of alcohol on his eye movement?

Mr. Eakin: That's correct.

Unknown Speaker: Just like you... you say the... the birthday question shows the effect of alcohol on his mind?

Mr. Eakin: That's correct.

It is... the question is not aimed at getting the truthful... what is... how old were you in such and such a year.

It's aimed to show that the mind is affected, not the contents of the mind but the brain being affected by alcohol.

The brain does a lot of things.

It controls your feet when you walk the line.

It controls your tongue when you go to talk.

That's why slurred speech is one of the classic indicia that... that defense counsel say, well, he didn't have slurred speech when... when the policeman doesn't hear it.

It's that classic.

But it's because the brain is affected by alcohol, not the tongue itself.

Unknown Speaker: May I just ask this question?

You... you did have in this case the fact he refused to take the... the one test.

You can use the eye movements, and you can use the staggering down the line.

Do you really need the rest of the evidence?

It seems to me... it almost sounds cumulative to me here that what we're fighting about.

Mr. Eakin: It may be, Your Honor, but the goal of the testing is to establish a routine that gives the best possible evidence to the finder of fact, and the three standard tests developed by the Highway Safety Council are ones that have statistically been shown to correlate to a very high degree to persons over the legal limit.

Unknown Speaker: May I ask this question, too: if the issue were not whether the man was intoxicated, but say it was in a different kind of criminal proceeding and the issue were whether he was mentally competent to stand trial, or mentally competent to receive the death penalty, or something like that, would you say you could perform these tests without giving him warning?

Mr. Eakin: I think that would have to be on a case by case basis.

Unknown Speaker: Why?

Isn't it the same issue?

I mean, the question is whether the privilege against self-incrimination protects him from making these verbal statements.

I don't know why the nature of the proceeding should matter.

Mr. Eakin: The case I think of is the Estelle case, where the psychiatrist in that case was using the substance of what was related to him rather than forming conclusions without regard to the substance of it.

If here we are to introduce, for the truth of what is said, his response, that's different, and I think in the mental health cases and insanity defenses that--

Unknown Speaker: Sometimes that's true, but you could also have a case where you just want to find out how his mind works when he's asked to recite the alphabet and when he's asked about his sixth birthday and that sort of thing, I would think.

I don't know.

Mr. Eakin: --I think in those cases, Your Honor, it would be proper, because again, it's not testimonial in nature, it's demonstrative in nature.

Unknown Speaker: Suppose... suppose the issue is whether or not... or one of the issues in the case is whether or not he can speak Spanish, and the police officers start talking to him in Spanish to see if he responds.

Can they ask him, do you speak Spanish?

Mr. Eakin: In that case, I believe it would be proper because you're not asking for a specific fact in his mind, but merely a--

Unknown Speaker: And his answer, in your view, is not used to incriminate him, based on his knowledge?

Mr. Eakin: --It would be to incriminate him, but not because of the contents of his mind, just as in the Dionisio case, where--

Unknown Speaker: How do you know Spanish?

Do you learn it in your arm?

No, of course you learn it in your mind, don't you?

Mr. Eakin: --The ability to speak Spanish certainly is contained in the mind, but if the court, as you have, have allowed us to take voice exemplars, or to speak at a line-up, the language in which you speak is equally as nonintrusive.

Unknown Speaker: Suppose this defendant is very nervous, and he... what he does is, he takes his existing age and he subtracts six, and then he takes that number and subtracts it from today's date, and he comes out wrong either because he doesn't quite do it right, or because he misses a month.

He uses years and he has a late birthday.

Still admissible in evidence?

Mr. Eakin: I'd suggest it's admissible, but certainly the weight of it is something that is always--

Unknown Speaker: Would he have to get onto the stand to explain how he did it and why he made the mistake?

Mr. Eakin: --The same as he can get on the stand to explain why he didn't walk the line properly or balance properly, or anything else, he can get on to explain why--

Unknown Speaker: Well, it seems to me it's qualitatively different, because you're asking him to perform a mental feat that requires verbal articulation, and that's what the Fifth Amendment is designed to protect against.

Mr. Eakin: --Well, the cases have clearly stated that if the purpose is to get the contents of the mind, that's one thing, but the processes of the brain in being able to do basic math or recite the alphabet or things that are not in and of themselves indicative of the contents of the mind of an individual relative to what they're looking for, that is different and ought to be maintained as different.

The mere fact that it is an oral manifestation rather than a physical should not matter.

We don't have them walk the line--

Unknown Speaker: That's because the Fifth Amendment is concerned with testimonial communication.

That's why we're concerned and that's why there might be a difference.

Mr. Eakin: --There might be a--

Unknown Speaker: Don't you think the question is one that the police would reasonably expect would result in an incriminating response under these circumstances?

Mr. Eakin: --Only in the same level as they would expect it--

Unknown Speaker: There was every indication this person had been drinking.

There were lots of indications he'd been drinking... staggering around and slurred speech and what have you... so they knew when they asked that birthday question it was likely to give an incriminating response.

Mr. Eakin: --Just as they knew when he would walk the line he was likely to incriminate himself in that manner, but not in a testimonial sense.

Unknown Speaker: But that's not an interrogation.

Mr. Eakin: It's not an interrogation--

Unknown Speaker: And this is.

Mr. Eakin: --It's not because it's not testimonial; it is physical.

It is demonstrative.

But the inability to count to six is, I suggest, the same as the inability to walk six steps.

The function affected is the brain.

We're not asking him to disclose any information about it.

The fact that he is more likely to say something incriminating or not should not inhibit the police in gathering physical evidence, which I suggest this is, just as much as walking the line is.

Unknown Speaker: Was he asked to recite the alphabet?

Mr. Eakin: No, not in this case.

Again, this case was after the Bruder case in Pennsylvania which at the time said that was improper because the contents of the alphabet were testimony, which I suggest they're not.

Unknown Speaker: Mr. Eakin, there is this difference between this case and the other nontestimonial cases that you talk about.

It seems to me you're quite correct that the content of his mind is not the object of the enterprise.

It's not the end that is sought.

But it is the means, and in these other cases... that is, because of the current content of his mind you know that he's drunk.

You don't want to introduce the content of his mind, but the means of showing that he's drunk is finding out the current content of his mind.

Wouldn't you acknowledge that difference, and that that's quite different from walking a line or being compelled to give a handwriting exemplar or a voice sample or anything like that?

Mr. Eakin: No, I don't--

Unknown Speaker: You don't acknowledge that?

Weren't you trying to find out the content of his mind?

In his mind, did he know what his sixth birthday was?

Mr. Eakin: --No, sir.

We're trying to show that his physiological ability to calculate was affected, but not--

Unknown Speaker: How do you show it?

How do you show it?

You show it by asking the content of his mind, and the content of his mind proves that his mind's not working right.

Isn't that the same... isn't that the same when he can't walk the line?

Mr. Eakin: --I'd suggest it is the same.

Unknown Speaker: Doesn't it come from the brain?

Mr. Eakin: It all comes from the brain, and what we're trying to show is not how old he was, what year he was six... that's the content of the mind... but it's the inability to arrive at that conclusion, which is a process of the brain, that is affected by alcohol.

The judgment driving down the road is impaired by the alcohol, and you cannot determine is this your street or not?

Is this a place I can make a U-turn or not?

It's not introduced to show what the street is, proper or improper.

It's to show that the function is impaired.

Unknown Speaker: I don't consider walking a line the content of the mind.

That may be a function of the brain, but when we talk about the content of the mind you mean ideas, you mean concepts.

That's what the Fifth Amendment is about.

Mr. Eakin: That's correct.

Facts.

Unknown Speaker: This is the only kind of a situation I know of in which you are... to be sure, you don't want the content for its own sake, but you do want the content of the mind as a means of showing something else, and that differs from all these other testimonial situations, it seems to me, or nontestimonial situations.

Mr. Eakin: Well, I certainly respect that distinction if you see one, Your Honor, but I--

Unknown Speaker: You can give me another case where we have used the content of the mind in the sense of ideas.

If we'd have asked him, as we did after rights, were you drinking, that's a fact in his mind.

That is his ability... if he slurs his words in answering, that is not testimonial.

It's relevant, but it's not testimonial.

It's not the contents of his mind.

It's not the extortion of information from him; it's the extortion of is ability to think, not what he thinks.

Unknown Speaker: That's his ability to move his lips.

You give him a paper to read.

It has nothing to do with any ideas in his mind.

You give him a paper to read, and he can't move his lips.

It's physical, just as the way he can't move his feet.

But in order to find that he can't think correctly, you must know what the content of his mind is, what idea he has in there, so you ask him this question.

Now, maybe it's okay, but it's different from all of the other testimonial cases that I know of.

Mr. Eakin: Well, it is different in that sense, I agree, but I would suggest that the mere fact that the test is an oral one rather than a physical one, strictly physical, is not the basis for the Court's distinction between testimonial and demonstrative evidence... it never has been, I'd suggest never should be.

The fact that no fact is disclosed here is significant.

The purpose for this information is not to show the date of his sixth birthday.

The Superior Court in this case felt that the routine questions were certainly all right.

We had the right to ask the individual to submit to a routine sobriety test of a physical nature.

They said, however, at some point during the latter, Mr. Muniz' responses became communicative in nature and therefore Miranda came in the side door and should have been given to him at the outset.

I think the record is clear that these were spontaneous remarks made in response to his instructions.

They were honest, they were on videotape, they were not coercive, and the fact that he merely said something in response that is incriminating in itself does not mean that--

Unknown Speaker: Didn't they explain the test to him?

They explained the breathalyzer test?

Mr. Eakin: --They explained every test to him, and his responses--

Unknown Speaker: And they say, do you understand?

Mr. Eakin: --That's correct.

Unknown Speaker: And he says no, I don't understand, and they have a big long talk about it?

Mr. Eakin: Yes, sir.

Unknown Speaker: Now, you say that that is all just spontaneous?

Mr. Eakin: Well, it is not the result of interrogation, even if it is his testimony.

Unknown Speaker: Well, it says, do you understand?

Mr. Eakin: That's correct.

Unknown Speaker: Well, isn't that interrogation?

Mr. Eakin: Well, I suppose it's... if it is interrogation, it is certainly fairer interrogation than having the test run and then having him complain that he did not understand and that's why he didn't do it, particularly in this case, where Spanish is in fact the gentleman's first language, English his second language.

It's certainly reasonable for the police to ask him, do you understand, just as they do when they give him--

Unknown Speaker: That may be.

That may be, but the question is about the statements he made in response.

Mr. Eakin: --No, it is not aimed at gaining testimonial evidence, again.

Unknown Speaker: But it was testimonial evidence.

Mr. Eakin: Well, the result... if it is--

Unknown Speaker: Wasn't it?

Mr. Eakin: --If he expressed confusion--

Unknown Speaker: Wasn't it... the result testimonial?

Mr. Eakin: --The result was testimonial.

But the... it is not interrogation because it's not designed to get that.

Nor is it reasonably likely to get that.

The mere fact that intoxicated people might be more inclined to spill the beans on themselves than a sober person doesn't give them a greater or a different rule.

It doesn't cause the police to have to be giving them different warnings or... or rights than they give the sober person.

If the burglar with a distinctive limp is made to walk the line for witnesses, and the drunk is made to walk the line for all of us on videotape, I'd suggest the standard is the same.

And just because the drunk is more likely to say something incriminating during his processing is not--

Unknown Speaker: What words do they use when they ask them to walk the line?

Do they say, will you do it?

Or, please walk the line?

What do they say?

What are the words?

Mr. Eakin: --It's... well, they ask them to come to the end, and say, I'm going to indicate to you now how I want you to do this.

Please stand there until I show you.

And then the officer demonstrates, with three or four steps, how he wants to do it.

Mr. Muniz, in this case, kept talking during the instructions.

Unknown Speaker: He kept saying the reason I can't is because I've had too much to drink?

Mr. Eakin: No, he didn't say that.

[Laughter]

He said that at roadside.

[Laughter]

But in this case, he indicated that he couldn't do it.

He could do it at his home, but he couldn't do it here.

He couldn't take the test now, the breath test, but he'd be happy to take it in a couple of hours.

[Laughter]

He said many things that were certainly incriminating.

But they weren't the response asked for by the police, and I'd suggest it caused the police to forego gathering legitimate physical evidence because it's a drunk and he might say something--

The question is, whether the... whether the statements are admissible, as well as the physical evidence.

Mr. Eakin: --That's correct.

But, again, if someone confesses during the gathering of legitimate testimonial... or legitimate demonstrative evidence, I suggest there's no purpose served by excluding that confession or incriminating statement any more than if it was during a lineup and he blurts out, during a search warrant and he blurts it out or routine sobriety testing and he blurts it out.

I suggest--

Unknown Speaker: What is the... how much damage do you suppose that would... would be done to the program if you had to give Miranda warnings as soon as you got him to... to the station house?

Mr. Eakin: --I think the damage is shown by the Thompson case in Pennsylvania, one of the superior court's line of cases, where they did, in response to the decision in this case, give Miranda warnings at the outset.

The accused then became, in the words of the court, obscene and belligerent when he refused to cooperate with these physical tests, because they had just told him he had the right to remain silent and have a lawyer present.

And he didn't want to do that without his lawyer present.

He became obscene and belligerent and the court ended up suppressing the entire tape.

Unknown Speaker: Well, is that... that... is... is that all... is that... you just have that one instance, or is there... is there some--

Mr. Eakin: That's one instance that's found its way to the appellate courts.

I suggest to you, where... where you tell them you have the right to remain silent and have a lawyer present, you suspect them of being intoxicated in the first place.

To... to expect that to do anything but confuse the individual is... is just not realistic.

It serves no purpose.

It protects no one.

It does hamper the gathering of legitimate physical evidence.

And I think would be a totally intolerable rule, given the desire we all have--

Unknown Speaker: --Is the... is the... is the experience... is it the experience in your state that... that successful prosecution of drunk driving cases is really difficult... very difficult?

Mr. Eakin: --Not with the booking cases.

We have more than tripled our prosecution rate in conjunction with these centers.

Police are more likely to cooperate in bringing the person in.

The citizenry accepts it.

The case is on videotape.

And that's a two-edged sword sometimes, but... but it's there.

And I think the truth-finding process is served by it.

Unknown Speaker: How much relies upon the breathalyzer?

Mr. Eakin: Pennsylvania has a per se rule if the test is over a.10.

So if we have the test, that often resolves the case.

Not always, but often.

In this case we had no test, and everything else becomes the crux of the case.

Unknown Speaker: But it was found to be effective?

Mr. Eakin: Oh, yes.

Yes, sir.

Unless there are other questions, I'll reserve the remaining time.

Unknown Speaker: Very well, Mr. Eakin.

Mr. Maffett, we'll hear from you.

Argument of Richard F. Maffett, Jr.

Mr. Maffett: Mr. Chief Justice, may it please the Court:

A distinction must be drawn in this case because of the crime involved.

Driving under the influence is a unique offense in the sense that the state of the mind of the defendant is actually an element of the offense.

The Commonwealth must prove for a conviction driving under the influence of alcohol to a degree that makes the person incapable of safe driving.

"Under the influence of alcohol" is defined by the Pennsylvania courts as to include any mental or physical condition as a result of drinking that either makes the person unfit to drive or substantially impairs judgment, clearness of intellect or normal faculties essential for safe driving.

And Pennsylvania courts have defined "substantial impairment" to be diminution or enfeeblement in ability to exercise judgment, to deliberate or to react prudently to changed circumstances.

Unknown Speaker: How do you define "testimonial"?

Mr. Maffett: I would define "testimonial" as anything that would disclose the contents of someone's mind either directly... either a direct confession or the inferences... inferences from the words themselves.

Unknown Speaker: Well, how about asking the person the name and address?

Mr. Maffett: Well, in some circumstances the name and address may not be testimonial.

It may be considered... I would submit it would be testimonial because it discloses the contents of the mind.

Sometimes it would not be interrogation because it would be found to be incident to normal arrest and custody.

However, in the drunk driving situation where practically anything can disclose the contents of the mind and can be expected to produce an incriminating response that... that then even asking the name and address without being... without giving the Miranda warnings would be considered interrogation.

Unknown Speaker: So you think here every single question that was put to this... to your client was interrogation, and Miranda warnings were required before even asking the name and address?

Mr. Maffett: Especially under the facts of this case, Your Honor, because not only had the police officer obtained this information at roadside, but the booking officer had obtained this information before they went on videotape.

Unknown Speaker: Well, but you would take the position that it was required at roadside as well, that nothing could be asked--

Mr. Maffett: Well, at roadside--

Unknown Speaker: --before giving Miranda warning.

Mr. Maffett: --At roadside he would not yet be in custody, and the very first thing the officer normally does as he begins his investigation would be your name, address, driver's license--

Unknown Speaker: He stopped him, didn't he?

Mr. Maffett: --Excuse me?

Unknown Speaker: He stopped him, didn't he?

Mr. Maffett: The man was at the side of the road, and the police officer stopped, and then he pulled off and the officer stopped him.

Unknown Speaker: So they stopped him?

Mr. Maffett: Yes.

Unknown Speaker: Well, what about if after he stopped they asked him to walk a line?

Mr. Maffett: If he has not yet been arrested, he wouldn't be in custody, and this Court's decision in Berkemer would control and--

Unknown Speaker: Supposing he was in custody or he had been arrested and they then ask him to walk a line?

Mr. Maffett: --Is that permissible?

Unknown Speaker: Yes.

Is the result of walking the line admissible if he has not previously been given Miranda warnings?

Mr. Maffett: That's not the issue in this case, Your Honor.

Unknown Speaker: It may not be, but I'm very interested in your answer to the question.

Mr. Maffett: I think... I think that under some circumstances that could also be testimonial; if, for example, it discloses the man's inability to follow instructions.

And one of the key parts of the... of the coordination tests, according to the National Highway Traffic Safety Administration instructions, is one of the key scoring points is can this man follow directions.

So that if his walking the straight line, if he can't do that because he can't follow the directions or he can't remember the test, that, yes, that can be testimonial, also.

Unknown Speaker: Because it discloses what you refer to as the contents of his mind?

Mr. Maffett: Yes.

It discloses his inability to reason.

It discloses his inability to remember, his intellect.

Unknown Speaker: Do you... do you regard that as a satisfactorily precise phrase, disclosing the contents of one's mind?

Mr. Maffett: Well, not exactly, and it's... it's hard to come up with a precise phrase because the other cases don't deal exactly with this issue.

The only issue that I can see close is the insanity situation.

Most other cases, how... whether or not I can reason doesn't really come into whether or not the crime can be proven.

Unknown Speaker: How about the voice exemplar cases and the handwriting sample cases?

Why do they not disclose the contents of one's mind?

Mr. Maffett: In those cases, the person who is giving the sample is not trying to communicate anything to the person he's giving the sample to, nor are the... are the law enforcement authorities attempting to get communication.

They simply want the physical aspect, the normal sound of the voice, the normal way the handwriting is written so that there's no communication.

Unknown Speaker: But it does take brain activity to produce that.

Mr. Maffett: It takes some brain activity.

I think in past decisions of this Court, the Court has found it to be so minimal as to be not considered because it's no conscious thought, and there's no... although there's brain activity, there's no intention to communicate.

There's no intention to convey an idea, and the times that samples like this have been allowed has always been a situation where it was for identity, not for elements of the crime.

Unknown Speaker: --Well, what if... what if... what if you ask me to give a writing sample, and I write

"the quick brown fox jumped over the lazy dog? "

Now I'm there communicating an idea, am I not?

Mr. Maffett: That's right, and I do not think that, under my understanding of this Court's past decisions, that that would not be permissible because that discloses rather than you giving me a sentence,

"the quick brown fox jumps over the log. "

to write, and I write what you tell me to write.

If you pick what you write and you decide how to spell it and what you pick, then that does disclose the mental thought process.

Unknown Speaker: So the handwriting sample cases depend upon whether or not the defendant is told what to write, which is all right, or said write anything you want, which is not all right?

Mr. Maffett: I would submit that's correct.

Both United States v. Wade and Dionisio and Gilbert all involve situations where the person who gave the sample was given something and said write this, speak this.

Unknown Speaker: So would it be all right here to ask the defendant to recite the alphabet?

Mr. Maffett: It would not because it would involve his intellectual capacity to put the letters together, to remember what comes after B.

Unknown Speaker: No.

It's just like being given a sentence to write.

Mr. Maffett: Except that if he forgets how to write the sentence, he can look on the paper and see it to write it.

In fact, there's a case, United States v. Campbell, which is the court of appeals... it's not this circuit... which where the individual had to spell the exemplar, where the exemplar was dictated to them but they had to pick the spelling, that that was found to be testimonial because the person conveyed the contents of his thought process, this is how I spell... how I spell the word.

And so similarly, if you are asked to recite the ABCs, again that's not this case, but if you're asked to recite the ABCs and you have to pick what comes after D and how many letters are there, that that discloses exactly what the Fifth Amendment was intended to protect.

Unknown Speaker: May I... may I question that, Mr. Maffett?

It seems to me when you talk about the contents of the mind, you can think of it as a warehouse, the contents of which are all sorts of information, data, facts and the like.

And there's a separate question is how well the machinery in the warehouse is working, and that is, does it, if you're asked to recite the alphabet and all the rest of it, how is the mind functioning, how is the nervous system functioning.

Why is that different from Justice White's example asking him to walk?

That tells you how the nervous system functions.

It doesn't reveal any of the material that's stored in the warehouse.

I think contents of the mind means something's stored there, not how it works.

Mr. Maffett: The... but the function of the mind is an element of... of this offense, and by asking the man to--

Unknown Speaker: Well, sure, but it might be a function of... but I don't know how that advances the argument.

Mr. Maffett: --Well, but by asking the man to calculate the date of his sixth birthday, unlike walking the straight line, he then is disclosing information that incriminates him from his mouth, from his thought process as opposed to his--

Unknown Speaker: Well, it's from his mind but he's showing how his mind works.

It works in a way that the law says is an element of the crime.

Mr. Maffett: --That's correct, and I would argue that that is protected by the Fifth Amendment.

This Court in Estelle v. Smith, in that case the psychiatrist took what the man said to him and... and decided that that man's mind worked in such a way that he was dangerous to society and deserved the death penalty, and this--

Unknown Speaker: That conclusion rested in part on how the mind worked and in part on the facts that were revealed during the discussion with the psychiatrist.

Both aspects were there.

Mr. Maffett: --Yes.

Well, this case to a certain extent has the... has the same thing because the... the inability to calculate the sixth birthday or to get your age right reveals how Mr. Muniz's mind worked, I would submit, in similar fashion.

Unknown Speaker: Well, on that basis I... I would suppose that if you ask him what's his... what's your age and he answers and he slurs, you could use... you could use the information he gave you, how old you are, but you couldn't show on videotape or have the... have the audio part showing that he slurred because that shows how he's speaking, how his mind is letting his tongue work.

Mr. Maffett: I would agree, Your Honor, and part of the problem is that sometimes you have a combination of testimonial--

Unknown Speaker: So you could get a voice exemplar except that it couldn't include a slurring?

Mr. Maffett: --Well, part of the problem particularly in a situation where the intoxication is the crime, you get a situation where you have a mixture of physical and testimonial in the same thing.

You have a mixture of the physical part of the... the control of the tongue with the thoughts of the mind, and it's... it's something that, I would submit to the Court, you can't cut the line.

You can't exclude the testimonial part.

Unknown Speaker: So the slurring is inadmissible, in your view?

The fact that he talks in a slurred manner is inadmissible without Miranda warnings?

Mr. Maffett: I would submit that it is, Your Honor.

Unknown Speaker: And... and--

Mr. Maffett: Again, that's not the situation here, but--

Unknown Speaker: --For the same reason that walking... that an ability to walk a line would be inadmissible in your view?

Mr. Maffett: --Well, again, inability to walk a line... the problem becomes that there are both physical and testimonial aspects.

There are the aspects that show the diminished ability to reason.

And there are aspects that show diminished ability to walk.

Unknown Speaker: But let's just take the typical situation where he's told to walk a line, shown how, and in the view of the police, doesn't succeed.

And you say you have a... a video and audio of that?

Mr. Maffett: That's--

Unknown Speaker: Is that admissible, in your view, how... how he walked that line?

Is that admissible?

Mr. Maffett: --Is... is his inability to do it, that he doesn't follow the--

Mr. Maffett: That would be much closer to strictly physical, and so, would be... would be permitted.

Because that's... that's more towards the exemplar situation, where you are looking at a person's normal gait, normal voice.

Unknown Speaker: It's not... I mean, it's physical, but a mind is a physical thing.

The reason he doesn't walk the line is not because there's something wrong with his foot, it's because it's something wrong with his mind.

Mr. Maffett: That... that's true.

However, if he's walking the line, it primarily would show his inability to control his physical features.

It depends--

Unknown Speaker: It means the inability of his mind.

It shows how is mind is working.

Mr. Maffett: --That... that's correct.

Unknown Speaker: But you... you... you wouldn't limit your... your... you know, the Constitution, just to mention it, does... does say that... that what we're talking about here is compelling a person in a criminal case to be a witness against himself.

To be a witness.

Don't you think that... that sort of focuses on... on ideas, on the conveying of not... not, you know, whether your mind can control your foot or not, but thoughts and ideas?

We're... we're... we merely challenged the responses that Mr. Muniz made, as far as walking the straight line and the one-leg stand.

We didn't make any challenge to those items.

Unknown Speaker: Yeah, but you're now saying that might have been a mistake.

I mean, you're carrying your position to the point that... that even where what he says does not disclose thoughts in his mind, but even if it just discloses whether his mind can control anything, that that might... might be bad.

Mr. Maffett: I think that you... you'd have to go on a case-by-case basis.

If it would--

Unknown Speaker: I'm sure.

Mr. Maffett: --Well, if... because, if it's... you get the combination of the physical and testimonial and unless... if I think of a specific instance, then I can say, well, I... I believe this to be physical or testimonial.

But the... the ideas... the... when Mr. Muniz tries to walk a straight line, or when Mr. Muniz tried to answer these questions, he was trying to convey the idea to the booking center personnel, I'm not drunk.

I'm... I'm all right.

I didn't commit a crime.

That's the idea he's trying to convey.

The Commonwealth, in trying to... to show these things, is trying to convey the... the impression he is drunk, he has committed a crime.

So that there is an idea, even in the... even when he tries to walk the straight like, he... he's trying to communicate, I'm okay.

I... I haven't had too much to drink.

Unknown Speaker: And I... I don't know that that's right.

Mr. Maffett: Well--

Unknown Speaker: I mean, I guess in the same way you can say when you give a voice exemplar, you're trying to communicate my voice sounds like this.

I mean, in that sense, everything's a communication of... of something in your mind.

Mr. Maffett: --But with the voice... with the voice exemplar, again, the individual is merely asked to... to repeat a... a phrase or a sentence, or whatever it is.

Unknown Speaker: Communicating my voice sounds like this as much as your client would be communicating, you know, I can control my feet.

Mr. Maffett: Well, the exemplar cases have always been for the identity of the person, rather than the... the elements of the crime itself.

Unknown Speaker: Why should that make any difference, when we're talking about the availability of the privilege against self-incrimination?

Mr. Maffett: Because identification is not... the... the physical identification... as Justice Scalia said, the Fifth Amendment... the Fifth Amendment protects the person from being a witness against themselves.

Identification doesn't make... doesn't normally make that person a witness against himself.

Unknown Speaker: Well, but that's because the cases have said identification in this sense is not testimonial.

Not that it's not an element of the... not that it's not helpful in getting the person convicted.

Mr. Maffett: But... but if you identify me, that doesn't help you to convict me.

It helps you to convict me in the sense that you may know who the suspect is.

But the police... the law enforcement authorities still must take and develop their evidence on their own and make their case, as opposed to having me participate in making their case.

Unknown Speaker: Well, but if... if we know that a person with a certain kind of handwriting forged this check, and it turns out that you have... required by the grand jury to give a handwriting example, or have that kind of handwriting, that is very obviously a link in the prosecution's case against you.

Mr. Maffett: It--

Unknown Speaker: So that if... if it were testimonial, you would surely have a right to object.

Mr. Maffett: --It... it is a link in the case, but... but it's not the case.

It... it, again, may provide the identity of the individual.

It would have to--

Unknown Speaker: You... you say the difference in it is whether it's just a link in the case as opposed to the case?

Mr. Maffett: --Well... and a person's identity is always a link in the case, because even if you have really strong proof, if you don't have the... who the... if you can't prove who it was, you don't have a case.

But you don't have... but identity doesn't help prove the elements of the crime.

For... for example, this Court, in, I believe, California v. Byers, said that an individual had to stop... had to stop after he had an accident and stay there.

And he was... by staying there, he was divulging his identity.

But that this... it didn't help the Commonwealth prove their case, because they still had to prove that he had committed some criminal violation.

There were other parts to the opinion.

I... I agree, but that's my understanding of the difference between identity and... and actually helping convict yourself.

The... there can be no question that calculating the sixth birthday or the other things that Mr. Muniz was asked to do, again, show either his ability to recall or reason or his inability to do that, and his clearness of intellect, judgment and mental state.

The fact that... that he didn't direct... in other words, that the Commonwealth didn't want to use his... the date of his sixth birthday for the actual proof of when the date of his sixth birthday is, is of no moment, as this Court decided in Estelle v. Smith.

The impressions, inferences, from what was said can be... can be just as protected and just as testimonial as... as the direct words.

The... it cannot be argued in this case that any of Mr. Muniz' responses were voluntary.

The Superior Court found, as a matter of fact, both that the utterances were clearly compelled, and that none of them were voluntary.

And furthermore, where a defendant is in custody and he hasn't been given his Miranda warnings, there is a presumption of compulsion.

Unknown Speaker: You really... you really think that there was a finding that these were actually compelled, or just that there was... it was equivalent to in... in-custody interrogation that would demand Miranda warnings?

Mr. Maffett: There was a finding that his--

Unknown Speaker: All of... all the... all the... all that would needed to have happened, as I understand it, was that the Miranda warnings should have been given first?

Mr. Maffett: --That... that's right, Your Honor.

And perhaps I misspoke.

There was a finding that his... his comments were not... were prompted.

In other words, they were either in response to direct questions or conduct on the part of the booking officer, not so much that they were compelled in that sense.

But this Court has in the past held that where a defendant is questioned in custody and without Miranda warnings, that he... that there is that presumption of compulsion.

This can... again, these... the... the occurrences in this case can't be argued to be tantamount to merely attendant... normally attendant to arrest and custody, because it goes far beyond what normally happens, and what this Court has found to be attendant to arrest and custody.

This is a situation far beyond fingerprinting or photographing or a blood or a breath test.

This was an investigative process.

The... the booking center process itself is designed to gather evidence.

You have a situation where not only is the defendant separated from the public, he's separated from the rest of the police department.

Only drunk driving suspects are taken to these booking centers.

The defendant is not asked, would you like to take some coordination tests?

He has said, now... now, we're going to give you some tests.

Would you come over here?

There are lines painted on the floor.

It is well lit.

The videotape and breath machines are in place.

He is given these physical sobriety tests as part of the investigation.

He's... the petitioner, in their brief, said that, as far as the implied consent law, that that was somehow to be fair to the defendant, to make sure that he understood.

But Pennsylvania law currently is that for a valid test or a valid refusal to be admitted into evidence, they don't need to show that the defendant understood what he was told about the implied consent law.

Or that his choice in either taking the test or not taking the test was knowing and voluntary.

They merely have to show that they told... that it was a legitimate arrest.

They asked him to take the test.

And that they told him what the consequences would be if he refused.

Unknown Speaker: Did you object to introducing what happened at the roadside?

Mr. Maffett: No, I did not, Your Honor.

Unknown Speaker: So, anything that... any of the tests there were admissable?

Mr. Maffett: That... that's correct.

Because he was not arrested until he was placed in the police car and... and actually placed under arrest.

A case that can be analogized to this case was... was the court of appeals case of United States v. Hinckley.

It involved the assassination of... or attempted assassination of President Reagan.

Now the FBI took Mr. Hinckley in for about 20 or 25 minutes, asked him questions concerning where his parents lived, his address, did he have girlfriends, where did he work, how far had he gone in school, those sorts of things.

It was nothing even as overt as this case, because it didn't have directly to do with the elements of the offense that he was charged with.

But the court found that since the agents were aware that there was a likelihood that there would be an insanity defense, the responses were inadmissible, because it was reasonably likely to... or the... the FBI was aware that there questions were reasonably likely to lead to an incriminating response.

And that's the... exactly the situation in this case, or it's pretty close.

Because you have the officer at roadside who has testified that he observes odor of alcohol, bloodshot eyes, poor coordination, trouble producing license and registration.

In fact, he told him to stay at the side of the road until he sobered up.

According to the officer, practically every contact at the side of the road produced some sort of an incriminating response.

And from that point on, law enforcement certainly should have known that... that whatever they asked Mr. Muniz was likely to illicit an incriminating response.

And then, more of the same at the booking center.

He... he can't even give them his address.

He has to look at his wallet.

He gets his age wrong.

This is all before the sixth birthday question.

Is it reasonably likely to expect that a... that a drunk driving suspect on being asked to perform these field sobriety tests, when he can't do them, will provide some sort of an explanation which will end up being incriminating?

If the procedure in this case is not construed by this Court to be interrogation, I would argue that the privilege against self-incrimination would be substantially eroded.

You can't expect a defendant who is upset by the arrest itself, without counsel, he does not know of his right not to have the conversation, to make a choice based on the consequences of these seemingly innocent questions and instructions.

Because the questions, on their face, to the defendant, are... are statistical, and may be... may seem to him to be to ensure he understood, without being told that he has a right to remain silent, or that whatever he says might be used against him, he has no way to know that he doesn't have to answer and that his responses may be used later at trial to convict him.

Unknown Speaker: xxx statements during the testing, the so-called voluntary statements during the testing?

He... could he have possibly have thought that he had to say those things?

Mr. Maffett: Well, I think most of the statements during the testing were... again, he was trying to show, to communicate that he was not intoxicated, because he said things like,

"I can't walk this way even when I'm at home. "

or

"I can't walk this way even when I'm at work. "

or

"I can't... My legs are not so good. "

So there were things that he was trying to explain why he couldn't do the tests that they asked him to do.

In fact, on the video--

Unknown Speaker: The audio of all of that was excluded, wasn't it?

Mr. Maffett: --Yes, it was.

Yes.

At one point on the video he even said... he was told, well, we'll read you your Miranda warnings later, and he said something to the effect of,

"I know you people are pretty fair about it. "

I mean, he was relying on them to be fair with him in their investigation.

He had no idea that what they were doing was gathering evidence, from what he said, to convict him.

And this would not, if you--

Unknown Speaker: Well, he didn't think that the tests he was given had some bearing on whether he would be held?

Mr. Maffett: --He may have, but as far as his words, I can't tell you.

He wouldn't know without being told that... and especially his statement,

"I know you people will be pretty fair about it. "

is an illustration that he thought that something else was going on, other than getting evidence.

Unknown Speaker: Well, it could just as well have meant he thought the police would not distort the results, they would be even-handed, not that they weren't doing anything to build a case against him.

Mr. Maffett: I suppose that's another fair inference.

This... if the Court were to sustain the Pennsylvania Superior Court it would not appreciably affect the way these booking procedures are done.

The defendant can still be asked his name and his address and any other biographical information that they need, but if they don't read him his rights, they just can't use that part in evidence, and I would argue that as far as whether or not it would make any difference if you did read the man his rights at the beginning, that in fact it would not.

It's been my practice in Cumberland County since the time of this decision that now, in fact, they do read him his rights as soon as the man comes to the police station and again, just from my practice, it doesn't make any... hasn't made any difference on whether the people say something or not.

Unknown Speaker: Is Cumberland County just to the west of Dauphin County?

You say you practice in Cumberland County, but your office I see is in Harrisburg.

Mr. Maffett: They're very close.

They're within... across the river is Cumberland County from Dauphin.

Lastly, the advantage of Miranda has always been its clarity... it's bright line.

The police, the prosecutors, the lower courts, know what must be done for questioning and under what circumstances statements are admissible.

If you make an exception to the facts for this case, it's going to lead to a lot of litigation.

The end result would be an elaborate set of rules and exceptions and distinctions, and nobody... not the police, not the prosecutors, not the courts... are going to know with any certainty as to any particular situation whether or not the interrogation is permissible.

If you allow the kind of conduct or questioning or the process that occurred here, you put a premium on the police devising these indirect interrogation methods, these tricky things of the sixth birthday question and other similar indirect questions.

Because the... what happened at the booking center is actually... if... it actually incriminated and was just as deadly to Mr. Muniz as if he'd have been asked, "are you drunk", if for all intents and purposes his responses said, "I am drunk".

And I would argue that because the utterances disclosed the contents of his mind, his reasoning ability, that they were testimonial and protected by the Fifth Amendment, and since he was subject to interrogation without Miranda warnings, that the audio portion of the videotape was correctly ruled inadmissible.

If there are no other questions, I'll sit down.

Unknown Speaker: Thank you, Mr. Maffett.

Mr. Eakin, you have two minutes remaining.

Rebuttal of J. Michael Eakin

Mr. Eakin: Thank you.

May it please the Court:

I would suggest that what the Court's being asked to do by Mr. Maffett is to extend Miranda to cover situations of custodial sobriety testing that it's not designed for, and that instead of the contrary, trying to devise a set of rights that an intoxicated suspect will understand that tells him he has a right to remain silent except you've got to do these tests, would be completely unworkable.

Because the tests are designed to get physical, demonstrative evidence and that's all they're designed to get, I suggest that the present law covers that and covers it quite clearly, and Miranda warnings should not be extended to apply to this situation.

Unless the Court has other questions, I'll forego the rest of my time.